Torbert v. Atl. Coast Line R. Co.*

• Citation: 95 S.E. 635
• Parties: TORBERT. v. ATLANTIC COAST LINE R. CO.*
• Decision Date: 28 March 1918
• Court: Supreme Court of Virginia

95 S.E. 635

TORBERT.

v.ATLANTIC COAST LINE R. CO.^*

Supreme Court of Appeals of Virginia.

March 28, 1918.

Error to Circuit Court, Norfolk County.

Action by N. T. Torbert against the Atlantic Coast Line Railroad Company. To review a judgment for defendant, plaintiff brings error. Reversed.

This is an action for damages by the plaintiff in error (hereinafter referred to as plaintiff) against the defendant in error (hereinafter referred to as defendant) for the destruction of a shed and its contents of lumber, all owned by plaintiff, by fire alleged to have been set out between midnight and 3 o'clock a. m. of November 7, 1915, by sparks or coals dropped or thrown from one of the locomotive engines or trains of the defendant.

Certain evidence for plaintiff was excluded by the trial court over the objection of the plaintiff; and a certain instruction was given by such court at the request of the defendant over the objection of the plaintiff.

Undisputed Facts.

Plaintiff's wooden shed, containing lumber, with roof covered with metal, was located on the east side of defendant's railroad and immediately adjacent to its right of way. The side of the shed next to the railroad was about 136 feet long, and that side of it was closely weatherboarded with German siding, having no opening therein on the night of the fire. This weatherboarding came practically down to the ground. The eaves of the shed were about 14 feet high, and about a foot higher than the tops of a line of box cars whichwere standing on a side track of defendant along by the shed at the time of the fire. The track of the main line of the defendant used by trains going south passed within 25 feet of such side of the shed. There was a space of about 18 or 20 inches between the box cars on the said side track and the shed, with the usual open spaces between the ends of the box cars as they stood coupled together or end touching end on the side track. The shed was 46 feet wide. It was not heated in any way, and contained no electric wires. The ends and other side of the shed were not closely boarded up. No one could enter the shed from those ends or sides, but any one standing on the outside of such ends or side of the shed could look through openings in the boarding into the interior of the shed. The door of the shed, which was at its northeast end, was locked at the time of the fire. No one slept or stayed in the shed at night. The shed was on a lumber lot of considerable size, which was inclosed partly by a solid board fence about 6 feet high, and partly by a wire fence some 5 feet high, with several strands of barbed wires on top of it, and the gates or openings in the fence, and in another shed forming part of the inclosure, were locked at the close of business of plaintiff the night before the fire, and were still locked at the time of the fire.

The fire in question originated either within the shed toward its northeast end and about midway inside of it, or on the outside of the weatherboarding or German siding next to defendant's railroad by catching afire next to the ground; and the fire was first discovered about 2:30 a. m. of November 7, 1915.

There was also a side track on the opposite side of defendant's main line from said shed on which a number of box cars were standing. Any train therefore passing along defendant's main line would, as it passed said shed, have run between two lines of box cars, which would have been very near to the passing train.

The Material Conflict in the Evidence— Evidence for Defendant.

The evidence for the defendant tended to show that the fire originated inside of the shed; that there was no dry grass, paper, etc., on defendant's right of way, heaped up against the weatherboarding of plaintiff's shed on that side of it, from which the fire could have been communicated to the shed, as plaintiff's witnesses testified; that there was no train of defendant which passed by the shed preceding the fire nearer than about 1:10 a.m. of the night of the fire; that at the time the fire originated, and shortly preceding, there was a slight wind blowing, and that this was blowing from the shed towards the railroad; that the 1:10 a. in. train referred to was a freight train going south; that there was a very slight, if any, grade in the railroad main line track going south, so that there was no pulling of any grade sufficient to cause any train going south to throw sparks.

Evidence for Plaintiff.

The evidence for the plaintiff which was admitted by the trial court tended to show that the fire originated on the outside of the Shed by the weatherboarding or German siding next to defendant's railroad catching afire next to the ground, being communicated from dry grass, paper, etc., thrown and left there some time before by defendant's section hands, such debris extending from the ends of the ties of the side track aforesaid some 18 or twenty inches in width to the weatherboarding of that side of the shed, and being heaped up several inches high against such weatherboarding of the shed; thai a freight train of the defendant going south passed the shed about 2 o'clock a. m. of the night of the fire; that a short time after the fire originated there was absolutely no wind, but a dead calm in the locality of the shed, even on the west side of it, the direction from which defendant claimed a wind was blowing; and the uncontroverted evidence is that at that time there was more wind in that vicinity than there had been for several hours next preceding. Hence the jury were warranted in finding, and therefore we must find, it to be a fact that at the time of the origin of the fire there was no wind, but a dead calm, in the locality of the shed; that there was some grade in the railroad main line track going south over which said train passed; and the plaintiff would have introduced testimony to the effect that all freight trains going south did in fact throw sparks and coals as they passed said shed, but the trial court refused to allow the introduction of such proof before the jury, as is more particularly set out in the opinion below.

The Instructions.

There were but three instructions to the jury given by the trial judge, one as asked for by the plaintiff, and two as asked for by the defendant, and they were as follows:

The following instruction was granted at the request of the plaintiff:

"The court instructs the jury that if they believe from the evidence that the property of the plaintiff, mentioned in the declaration, was destroyed by fire, and that such fire was caused by a spark or sparks, coal or coals, dropped or thrown from an engine of the defendant, or from an engine of the Southern Railway Company, using the tracks of the defendant, which passed near the plaintiff's said property on the 7th day of November, 1915, between the hours of 12 o'clock mid [some words omitted, being perhaps "night and 3 o'clock a. m."] which passed near the plaintiff's said property on the 7th they should find for the plaintiff. And if the jury shall find for the plaintiff, they should fix his damages at the value of the property destroyed, not exceeding the amount claimed in the declaration."

The two following instructions were granted at the request of the defendant:

"Defendant's Instruction No. 1.

"The court instructs the jury that the burden of proving that the fire complained of was caused by the engine of the defendant or by the engine...